Get in on the Act The Care Act 2014

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Get in on the Act The Care Act 2014

Part Two of the Act seeks to improve care Background standards by putting people and their carers The Care Act was first published as a Bill in the in control of their care and support. It also on 9 May 2013, following pre- provides a legislative response to the Francis legislative scrutiny. The legislation, which aims Inquiry by increasing transparency and to modernise adult social care law, received openness. The intention is to enhance the on the 14 May 2014, becoming quality of care. the Care Act (the Act). Part Three of the Act establishes Health The Act is divided into three main parts. Part Education and the Health Research One deals with the reform of adult social Authority. care and support legislation and is structured The LGA has actively promoted the need for around an individual’s journey through the a fully funded and reformed care system for reformed system (be they someone in need of a number of years. That is why we engaged care, or their carer). closely with the Law Commission’s inquiry on The Act will put a limit on the amount those adult social care (2008-2011), the resulting receiving care will have to pay towards the Draft Care and Support Bill and the Care costs of their care, with a cap on care costs Bill itself. The Care Act is many years in the beginning in April 2016. The remainder of making and the LGA has worked closely Part One of the Act, such as national eligibility with Government, Parliament and partner criteria and universal deferred payments, will organisations throughout the process. come into force in April 2015.

In summary, Part One covers a number of Influencing the legislation areas, including: For a number of years local government has • the general responsibility of local authorities been at the forefront of making the case for as enshrined in Section 1, ‘wellbeing changing the way that care and support is principle’ designed, commissioned and delivered. The LGA broadly supported the proposals set out • assessment of needs and defining eligible in the legislation and worked constructively need with Government, parliamentarians and • charging and the cap on care costs stakeholders. This included working closely • paying for care with Parliament on the draft Care and Support Bill in 2012 which laid the foundations of this • safeguarding Act and was an important milestone in the • provider failure process of reform. • transition for children to adult services.

Get in on the Act: The Care Act 2014 3 Fair funding to our amendment by highlighting that the The LGA worked with our network of Government has “allocated significant parliamentary supporters in the House of additional funding to local authorities for adult Lords and the House of Commons to highlight care and support, including a transfer from that all the reforms need to be adequately the NHS of £1.1 billion a year by 2014-15 to and fairly funded. This means ensuring that be spent on social care with a health benefit”.1 the reforms do not cost more than the fixed He also noted that the Better Care Fund envelope for 2015-16. Funding for the on-going “includes £135 million of additional funding for costs of the reforms from 2016 onwards will implementing the Bill in 2015-16.”2 be set out in the Spending Review following the 2015 General Election. The LGA, working We also successfully briefed against a with its partners, will influence that process to proposal that sought to impose a duty on the ensure there is sufficient money to finance the Secretary of State to use the Care Quality reformed system of care and support. Commission (CQC) to conduct thematic reviews of local authority commissioning As part of our parliamentary engagement, regardless of whether there was a particular we supported amendments to the Act which failure in care that needed investigating. This sought further assurances that the reforms has prevented a potentially onerous burden being implemented were fully costed and being placed on councils. funded as new burdens. This meant adequate funding both in terms of implementation in Deferred payment agreements 2015/16 (for which £335 million was allocated In addition to lobbying on funding, the LGA and in the June 2013 Spending Round, with a ADASS proposed a national body to oversee further £135 million of Care Act costs to be and administer the reformed universal deferred met through the Better Care Fund) and for payment agreements scheme. Deferred supporting on-going running costs (money payments allow people to borrow money from for which will be allocated through future councils to pay for their care and repay it upon Spending Reviews). the sale of their home. Our proposal sought to prevent local government from being exposed We worked closely with the Association of to the financial and reputational risk inherent Directors of Adult Social Services (ADASS) in this. It would also have benefited those and the Care and Support Alliance, a accessing care, by creating a simpler and consortium of over 70 organisations that more consistent system. represent and support older and disabled people, to make the case for a reformed Despite the obvious benefits of a national system of care that is fully and fairly funded. system, the Government opposed the proposal There was cross party support for our proposal and it does not form part of the legislation. to create a new mechanism to provide However, by engaging with central government further reassurance on funding. A number of and Parliament, the LGA has been able to parliamentarians quoted the LGA’s analysis highlight the concerns local government has about the challenging funding position councils with the planned extension of the system of are facing and the impact of this on a reformed deferred payment agreements. system of care. Royal Assent does not mark the end of the Whilst our proposals were opposed by work required to bring about a new and Government and therefore did not pass into reformed care and support system. The LGA, law, local government’s lobbying did garner working with councils, central government and the support of politicians from across the stakeholders, will continue to influence this political divide. In the House of Commons the agenda. We will respond to the consultation on Care Minister, Norman Lamb MP, responded the regulations and guidance accompanying

4 Get in on the Act: The Care Act 2014 the Act and support local authorities as they the development of care and support needs prepare for implementation. The reassurances (including carers’ support needs). the LGA received during the Act’s passage through the House of Lords and House Integration: section 3 Commons will be vital in helping us ensure Section 3 places a duty on local authorities that local government is properly supported to to carry out their care and support functions deliver a reformed care and support system. with the aim of integrating services with those provided by the NHS or other health-related services. A note of thanks Information and advice: section 4 The LGA would like to place on record its Section 4 creates a duty on local authorities thanks to our Vice Presidents and all those to provide an information and advice service parliamentarians who supported local which is available to all people in the local government during the passage of this Act. authority’s area. This service must include We would also like to thank our colleagues at information on how to access independent ADASS and the Care and Support Alliance financial advice, regardless of whether or not a who we worked closely with as we sought to resident has eligible care needs. influence the legislation. Diversity and Quality of provision (Market Shaping): section 5 Key features of the Act for Section 5 creates a general duty for local local government authorities to promote diversity and quality in the market of care and support providers for The analysis set out below is based people in their local area. on information provided by the joint Programme Management Office for Care Cooperation: sections 6-7 Act implementation, a partnership between Sections 6-7 create a general duty to the LGA, ADASS and the Department of cooperate between the local authority and Health. For a more detailed section by section other organisations which have functions commentary on the Care Act, please refer to relevant to care and support. This includes the joint Programme Office analysis.3 a duty on the local authority itself to ensure cooperation between its adult care and Sections 15, 16, 28, 29 and 72 will take effect support, housing, public health and children’s from April 2016; the remainder will take effect services. from April 2015. How to meet needs: section 8 Wellbeing principle: section 1 Section 8 gives examples of the ways in which Section 1 creates a new statutory principle a local authority may meet a person’s needs which applies to all the functions under Part under the Care Act. It relates to adults who One of the Act (including care and support need care and carers. and safeguarding), and means that whenever a local authority makes a decision about an Assessment: section 9, 10 and 11 adult, they must promote that adult’s wellbeing. Sections 9-11 set out when a local authority must carry out an assessment of need and Prevention: section 2 what the assessment should cover. Section 2 requires local authorities to ensure the provision of preventative services - that is Assessment regulations: section 12 services which help prevent, delay or reduce Section 12, which also applies to carers,

Get in on the Act: The Care Act 2014 5 enables regulations to specify further detail care, or if the adult’s accrued costs exceed the about the assessment process, including cap on care costs. requiring the assessment to be appropriate and proportionate. Power to meet needs: section 19 Section 19 provides a broad power for the Eligibility: section 13 local authority to meet care and support Section 13 requires local authorities to needs in circumstances where the duty in determine whether a person has eligible section 18 does not arise. It also allows for needs after they have carried out a needs local authorities to temporarily bypass carrying assessment or a carer’s assessment. It out an assessment of needs, where care and provides for regulations which will set out support is needed urgently. the eligibility criteria, including the national minimum level of eligibility at which local Duty and power to meet carers’ needs: authorities must meet a person’s care and section 20 support needs. Section 20 establishes a legal obligation to meet a carer’s needs for support, on a similar Charging: section 14 basis to those needing care in section 18. The Section 14 gives local authorities a general key conditions for a carer’s entitlement are that power to charge for certain types of care and they have assessed eligible needs for support support, at their discretion. and that the person for whom they care is ordinarily resident in the local authority area (or Cap on Care Costs: sections 15-16 present there but of no settled residence). Sections 15-16 allows for regulations to establish a limit on the amount that adults Exception for immigration: section 21 can be required to pay towards the costs of Section 21 applies to adults who are subject to meeting their eligible needs over their lifetime, immigration control. The section provides that and prevents local authorities from making a local authorities may not meet the care and charge for meeting needs (other than for daily support needs of such adults solely because living costs) once an adult’s care costs have they are ‘destitute’ or because of the physical reached that limit. effects or anticipated physical effects of being destitute. If their needs have arisen for other Financial assessment: section 17 reasons (e.g. because of a disability, rather Section 17 requires a local authority to carry than solely because they are destitute), then out a financial assessment if they have chosen the prohibition does not apply. to charge for a particular service under the power in section 14. Exception for NHS: section 22 Section 22 provides that in meeting an adult’s Duty to meet needs: section 18 needs for care and support, a local authority Section 18 sets out the circumstances may not provide any healthcare services establishing an entitlement to public care and which are the responsibility of the NHS. support for adults who need care (carers are However, a local authority may provide some covered in a separate section). It describes the healthcare services in certain circumstances, conditions which must be met for there to be a as long as the service provided is minor and duty on local authorities to meet their eligible it accompanies some other care and support needs. service which the local authority is permitted to provide. Section 18 creates a new duty on local authorities to arrange care and support if requested, when the adult would otherwise not be entitled, but could afford to pay for their

6 Get in on the Act: The Care Act 2014 Exception for housing: section 23 personal budget is a statement recording Section 23 provides that local authorities may how much of the adult’s spending on care will not meet an adult’s care and support needs count towards the cap. by providing general housing, or anything else required under other legislation specified Care account: section 29 in regulations. It forms the boundary in law Section 29 requires local authorities to maintain between adult social care and housing. a record (‘care account’) of an individual’s progress toward the cap on the cost of care. Steps to take: section 24 Section 24 sets out the steps local authorities Choice of accommodation: section 30 must take after carrying out the needs Section 30 provides a framework and powers assessment or carer’s assessment (and the to set regulations regarding the choice of financial assessment where relevant). This accommodation, and other matters. includes the preparation of a care and support plan for the individual, confirmation to the Regulations will broadly maintain current individual of which needs will be met by direct practice. They will set out factors to be payments, and help to the individual to decide considered when it has been determined how needs will be met. that an individual’s needs would be best met through the provision of care and support in Care and support plans: section 25 a care home or other type of accommodation, Section 25 details requirements for inclusion and the adult expresses a preference for in the care and support plans and carers’ particular accommodation. support plans. Direct payments: sections 31-33 Personal budget: section 26 Sections 31-33 consolidate the existing Section 26 define a personal budget as legislation on direct payments. People with a statement of the cost of meeting an capacity can request a direct payment, and individual’s needs and the amount the where they meet the conditions set out in this individual and the council must pay towards section the local authority must provide direct these costs. It also sets out the financial payments to meet their assessed eligible information to be included in the statement. needs. The definition of the personal budget reflects It also places a duty on local authorities for current policy and practice. adults who lack capacity. It requires local authorities to make a direct payment to an Review of care and support plan: authorised person who requests one, provided section 27 five conditions set out in the section are met. Section 27 requires local authorities to keep care and support plans and carers’ support Deferred payments: sections 34-36 plans under review generally, and to carry out Sections 34-36 allows regulations to be made an assessment where they are satisfied that to state when a local authority may or must the person’s circumstances have changed. enter into a deferred payment agreement The adult can also make a reasonable request which will allow people to defer paying their to have a review. care fees by taking out a loan from their council (secured against their property) to pay Independent Personal Budget: section 28 for care and support. The loan will be repaid Section 28 establishes independent personal upon the sale of the person’s home. budgets for adults who have eligible needs, and who choose not to have those needs Section 35 contains further provisions for met by their local authority. The independent deferred payment agreements to help local

Get in on the Act: The Care Act 2014 7 authorities recover the costs involved in their Provider Failure: sections 48-52 provision and to ensure adequate protections Sections 48-52 set out the duty on English for residents and their families. It includes local authorities when providers fail. Authorities powers to set out what administration costs will be required to temporarily meet those of and interest payments local authorities can an adult’s needs for care and support which charge people, and the information or other are no longer being met as a result of the consumer protection measures that must be provider failing. This specific duty will apply to provided to the resident. all individuals present in the authority’s area whose needs the local authority is not already Continuity of care: section 37-38 meeting, for example those who are self- Section 37 sets out the duties that local funders, and those whose services are funded authorities are under when an individual, and by another local authority. potentially their carer, notifies them that they intend to move from one local authority area to Market Oversight: sections 53-57 another. Sections 53-57 set out duties on the CQC to:

Section 38 applies when the second receiving • assess the financial sustainability of the authority has not carried out the assessment most difficult to replace provider. before the person moves. It requires the • support local authorities to ensure continuity second authority to provide services based on of care when providers fail, by informing the care and support plan provided by the first them where it deems that it is likely that a authority. The second authority must continue provider will fail and providing authorities to provide this care until it has undertaken its with information they need, including details own assessment. of the individuals receiving services from the provider in the authority’s area. Ordinary residence: sections 39-41 Sections 39-41 help local authorities identify a To support the CQC in doing this, the Act gives person’s ordinary residence (usually based on the CQC powers to engage providers in where they live) for the purposes of providing mitigation planning by requiring them to care and support. develop a sustainability plan or commissioning an independent review of the provider’s It also provides a mechanism for local business. authorities to reclaim money they have spent providing care and support to someone for Transition from childhood: sections 58- whom they were not in fact responsible. 66 Sections 58-66 provide local authorities with a Adult safeguarding: sections 42-47/S2 duty to assess a child, young carers or child’s Sections 42-47/S2 set out the local authority’s carer before they turn 18, in order to help responsibility for adult safeguarding for the first them plan if they are likely to have needs once time in primary legislation. This includes: they (or the child they care for) turn 18 and if it will be of ‘significant benefit’. It gives local • responsibility to ensure enquiries into cases authorities a power to meet the needs of an of abuse and neglect adult caring for a child with needs for care and • establishment of Safeguarding Adults support and allows regulations to be made in Boards on a statutory footing relation to the exercise of this power. • information sharing. The sections also include a power to make regulations about assessment for young carers. This is designed to provide continuity so that, where a young person is receiving

8 Get in on the Act: The Care Act 2014 children’s services, those services will not stop have an element of independence from local abruptly when the person turns 18, but must authority decision-making. The final form of continue until adult services have a plan in place. regulations and guidance will be developed with stakeholders and consulted upon in late Independent advocacy support: 2014 alongside other elements of the reforms sections 67-68 that come into effect from April 2016. Sections 67-68 place a duty on local authorities, in certain specified circumstances, to arrange Human Right Act – application to an independent advocate to be available to provision of regulated care or support: facilitate the involvement of an adult or carer Section 73 who is the subject of an assessment, care or Section 73 makes it explicit that care providers support planning or review. regulated by the Care Quality Commission in England (or by equivalent bodies in the rest of Recovery of charges, Transfer of assets: the United Kingdom) are bound by the Human sections 69-70 Rights Act when providing care and support. Sections 69-70 allow local authorities to recover debt incurred providing care services. Delayed discharges: section 74/S3 Section 74/S3 re-enact and update the Five-yearly review: section 71 provisions which relate to delayed discharges Section 71 requires the Secretary of State for from acute hospitals. They set out the process Health to review how the capped cost system for notification of discharge when an adult is operating every five years, the results of has care needs, requirement for assessment, which can be used to inform decisions on and amends the mandatory system of fining whether to change the level of the cap, or other (“reimbursement”), where the local authority parameters, such as general living costs, in the has not carried out its duties by the day of system. discharge, to a discretionary one.

Part 1 Appeals: section 72 Mental health after-care: section 75/S4 Section 72 allows for regulations to establish a Section 75/S4 clarifies that after-care services process through which appeals may be made provided under section 117 of the Mental against decisions taken by a local authority Health Act 1983 are to meet a need arising in respect of individuals under Part 1 of the from or related to the mental disorder of the Act. Amongst other things, the regulations person concerned. They aim to reduce the may specify the type of decision that may be likelihood of a deterioration in the person’s appealed and the details of the process that mental disorder (and, accordingly, reducing must be followed. their risk of requiring admission to hospital for treatment). The regulations made under the section would provide for investigations to be carried out into Prisoners: section 76 things done or not done by the person or body Section 76 sets out the responsibilities for with power to consider the appeal. This would provision of care and support for adult enable overview of the appeals process itself prisoners and people residing in approved and would, for example, enable the Secretary premises. Where it appears that adults in of State to provide for the involvement of the prison or approved premises have needs for Local Government Ombudsman in the overall care and support, they should have their needs appeal process. assessed by local authorities and where they meet eligibility criteria, have services provided The section also aims to establish a flexible by the local authority in question. Prisoners’ and proportionate appeals system which will non-eligible needs will be met by the prison.

Get in on the Act: The Care Act 2014 9 Registers: section 77 Section 77 requires local authorities to continue to establish and maintain a register of people living in their area who are sight impaired. It also enables local authorities to establish and maintain a similar register of people living in their area who need care and support or are likely to do so in the future.

Guidance: section 78 Section 78 gives the Secretary of State a power to issue guidance to local authorities on how they exercise functions under the Act. Before issuing any such guidance the Secretary of State must consult such people as he or she considers appropriate.

Delegation: section 79 Section 79 provides for a new power for local authorities to delegate certain care and support functions to a third party. This is a new discretion for local authorities, to be determined locally.

Cross border placements: section S1 Section S1 makes provision for a person ordinarily resident in England, who has care and support needs and requires residential accommodation to meet those needs, to be provided with that accommodation in another part of the UK.

It also allows for such placements to be made in England for people who are ordinarily resident in , or whose care and support is provided under the relevant Scottish or Northern Irish legislation.

1 Hansard, House of Commons, column 86, 10 March 2014, available at: http://www.publications.parliament.uk/pa/ cm201314/cmhansrd/cm140310/debtext/140310-0003.htm

2 Ibid.

3 For a full analysis from the Joint Care and Support Reform Programme Office:http://www.local.gov.uk/web/guest/care- support-reform/-/journal_content/56/10180/5761381/ARTICLE

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